Auvryn Scarlett was off his epilepsy medication the night he had a seizure behind the wheel on W. 35th Street between Fifth and Sixth Avenues. The truck jumped the curb and ran over Jacqueline Timmins and Andrew Hardie, who had come to the city from Yeovil in southern England to celebrate Valentine’s Day. According to reports, Timmins was decapitated and died at the scene; Hardie died later at Bellevue Hospital. The couple had six children between them.

Scarlett was also convicted of assault, presumably for injuring a third pedestrian, Abayomi Henderson, who seconds earlier had walked around the couple as they strolled down the sidewalk.

While it’s not unheard of for a sober city driver to be charged for killing someone — in cases of drag racing, for instance– it is, as Streetsblog readers know, extremely rare, and even more so for prosecutors to secure a murder conviction.

"I can’t recall any prior instance in which a killer driver who wasn’t intoxicated was convicted of murder," says Charles Komanoff, long-time pedestrian safety advocate and author ofKilled By
Automobile, "and that includes many of the roughly 200 fatal instances since 1990 when the driver mounted the sidewalk."

Komanoff cites several such cases in which drivers whose negligence resulted in death were given a slap on the wrist, or were subject to no legal sanctions at all. Stella Maychick, mistaking the gas pedal for the brake, killed six people and injured two dozen in Washington Square Park in April 1992: no charges filed. Isaac Chehebar, joy-riding at twice the speed limit on Ocean Parkway, killed sisters Inna and Svetlana Shetman and maimed their mother Rima Shetman in April 2001: plea-bargained by Brooklyn DA Charles Hynes to four months. And most recently, delivery driver Chao Fu, leaving his van with the engine running and the gear in reverse, killed toddlers Diego Martinez and Hayley Ng in Chinatown last January: no charges filed.

The decision to prosecute Scarlett for manslaughter and criminally
negligent homicide was announced almost immediately. "Apparently, he
stopped taking his medication," an NYPD spokeswoman said the day after
the crash. "It was a conscious decision, so he’s being charged." Why Auvryn Scarlett and not Chao Fu? Local coverage of the trial was scant, but a BBC report offers some insight:

Summing up the prosecution case at New York Supreme Court, assistant
district attorney Chris Ryan said Scarlett had shown a complete
disregard for the safety of others.

Driving six days a week for
the refuse haulage company, he knew he could have a seizure at any time
"on some of the busiest streets on earth".

He said: "It is like
playing a game of Russian roulette, only instead of pointing the gun at
yourself, you point it at other people. And if someone dies — that is
murder."

The Scarlett prosecution seems to hinge on the "conscious decision" not
to take his seizure medication, making it a reverse DUI case of
sorts. It could also be that the incident was captured on video, which
prosecutors showed to the jury, or even that the victims were living a New York fairytale — lovebirds on a Valentine’s Day stroll — the instant they were brutally killed. Whatever factors were at play in determining whether to bring charges (Streetsblog has a message in with District Attorney Robert Morgenthau’s office), Transportation Alternatives Executive Director Paul Steely White questions how the Scarlett case could differ so greatly from that of other pedestrian fatalities.

"Don’t people make a conscious decision to speed or a conscious decision to turn without yielding?" says White. "Are we saying that people are somehow unconscious when they’re breaking the law? The bottom line is that people are responsible for their own behavior, especially when they’re driving a multi-ton vehicle. Scarlett’s actions were no more deliberate than the majority of negligent motorists who routinely get off scot-free."

Komanoff agrees: "It would be a positive sign if [Scarlett’s prosecution] signaled the end of the Manhattan DA’s habitual coddling of killer drivers. But if it’s back to business as usual after this case, then one is left wondering why one driver’s failure to take medication is treated more harshly than the failure of other drivers to refrain from gross, fatal negligence."

One hopes that under future DA Cy Vance, holding killer drivers accountable will indeed become the norm. Unfortunately, with pedestrian deaths on the rise, safe streets advocates will probably have their first indication not long after Vance takes office in January.

Auvryn Scarlett will be sentenced for the murders of Jacqueline Timmins and Andrew Hardie on October 15.

There was more to this case.
As part of his truck driver’s application, Mr. Scarlett signed and submitted medical certificates that falsely showed he was not epileptic, even though he had a history of seizures and he was on epilepsy medication at the time.
Epileptics are barred from driving garbage trucks, as a matter of federal regulation. He flouted that regulation. He then filed incorrect renewal medical certificates every 2 years.
He had a seizure while working for a previous carting company as recently as 4 months before the accident, then while on disability on account of that seizure, applied (without disclosing the epilepsy) for the job at the carting company that employed him at the time of the accident.
Without any basis or medical consultation, he stopped taking the anti-seizure medication cold turkey, starting 2 weeks before the accident. In that light, the accident became inevitable.
The jury may have concluded that at some point, this series of actions crossed the line from recklessness to a depraved indifference to human life.

wes

Negligent manslaughter would have been a better charge to go with. This isn’t a murder case, and it debases the meaning of actually being murdered.

> 2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person; or

You’re forgetting the first sentence of the definition of second degree murder in NY state:

“Under circumstances evincing a depraved indifference to human life”

His intent was not to harm anyone. He was reckless. I am further dismayed at the level of laws that NY has, and the definition for second degree murder is very open to interpretation and much different than most states. Remember, the difference between 1st and 2nd degree murder is really premeditation (most states).

I think if one is to get a murder conviction, their intent was to kill someone. If intent is not there, manslaughter (negligent or not) is the charge.

He was wreckless, but he did not go out of his way to kill someone. A murder conviction over a homicide conviction by the DA is not going make any impact on pedestrian safety whatsoever.

glenn

I would like if this was a watershed conviction, but there are so many factors outside the norm – medical condition, stopping medication, signing a form saying he didn’t have that condition…jurors could separate themselves from the defendant enough to convict. The problem with a lot of run-of-the-mill negligent driving cases is that jurors feel that speeding, no-look turns and even aggressive/distracted driving hits too close to the driver’s seat for jurors to convict them for behaviors they consider normal or at least not “criminal”.

I’m not forgetting it, I just thought that by quoting it I could demonstrate my agreement with it. Read Anon’s summary of the trial, then look me in the e-face and tell me that’s not a depraved indifference to human life.

What “you think” constitutes murder isn’t at issue, so long as we’re a nation of laws. (Whether we still are such a nation is another matter entirely.)

Ian Turner

The race of the driver and victims may help explain why justice was carried out in this case and not in so many others. White and wealthy victims killed by a working-class black man makes for a substantially easier prosecution.

Anon

Ian– The two victims who died in the Scarlett case were lower middle class. One worked as a cook in an Asda (similar to Walmart) store employee cafeteria, the other was a refrigerator technician. The third pedestrian victim, who was maimed but not killed (thus, the additional assault verdict) is black and had a counter job at Macy’s.
The jury members in the Scarlett case were various ethnicities and returned a unanimous verdict.
In that light, I wouldn’t jump to assume that race or socioeconomic status was a major factor here.

On the issue of “intent” and as to whether a charge of murder can be sustained without establishing that the defendant acted with an intent to take the life of another individual, New York Penal law includes several specific instances where a defendant can be convicted of Murder in the Second Degree when intent is not present. Section 125.25(2) is most relevant to vehicular crimes, using the following language: “Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person;”

wes

Peter G:

Thanks for joining the discussion as we’ve already discussed that already. Points I am making:

1) Did the convicted show a “depraved indifference to human life” by not taking his meds (which probably had bad side effects) and lying on his job application?

2) It may be that a law says this and that, but laws can be changed and are often misguided. The question is, does one agree with the outcome of murder? I do not, and I’d bet a lot of states do not have the same wordings that NY state has for second degree murder regarding negligence. That right there would tell me that NY law is too powerful.

3) Should all epileptics be barred from driving in our auto-topic society? Is one willing to have more of their income deducted to people who cannot obtain employment due to their epileptic condition?

Hypothetical:

Let’s say a bicyclist runs a red light (this individual usually wears eyeglasses to see, but was not wearing them at the time and can get by w/o wearing them) and hits and kills a pedestrian who had the right of way.

Is this murder?

I bring up this hypothetical case because this court ruling sets precedent for further rulings. It seems people one here who agree with this ruling (mostly anti-car zealots) only care that an automobile was involved and that he got a murder charge on him for a very negligent circumstance. But in reality, this just gives prosecutors more power…do they really need more power?

wes

PS:

I want everyone to understand the actual meaning of “depraved” before saying he showed a “depraved indifference to human life.”

Let’s reserve that for the actual killers in society, and not dilute the meaning of murder.

Ian Turner

Anon,

Point taken on the class issue, and I’m pleased to hear that he received a multiracial jury. However, it’s still possible that the decision to prosecute was subject to racial influences. This case is justice done, but the notability of that fact is disappointing.

Cheers,

–Ian

Ian Turner

Wes,

New York City is a place where most people don’t even own a car, much less need one in order to make a decent living. There is no reason that Mr. Scarlett could have gotten work in any number of other fields which do not require the operation of heavy machinery. He was aware of these facts, and acted in the way that he did because of a corrupt indifference to the lives of others.

Best,

–Ian

Ian Turner

Wes,

Also, while setting up your straw man argument, let’s please note that hitting someone with a bicycle is far less likely to maim, let alone kill, someone. A garbage truck is far, far more deadly, as indicated by the annual death toll this city witnesses.

wes

Ian:
The issue (and hypothetical situation) I posited was not to discuss the physics between garbage trucks and bikes whilst striking a mostly stationary object; but rather the criminal proceedings that would ensue based off of the legal decision and precedent set forth in this case of the epileptic garbage truck driver and his murder conviction.

By all means, the bicyclist in my hypothetical should be charged with murder in the 2nd degree (while rare, bikes have killed pedestrians before). I do not agree with such a charge for a bicyclists, car driver, or any other person who is truly negligent. I also do not agree with NY state law regarding second degree murder.

I only bring up the hypothetical bicyclist because idiot lawmakers, voters, etc. always rule to have “tougher” laws on crime – but they always end up backfiring or unfairly punishing and castigating people in society (i.e. draconian drug laws). Tough laws might make sure that 9/10 people receive proper justice – but what’s left is that one person who is unfairly thrown under the bus of an overpowering judicial system.

Not all homicides are created equal, and some gang-banger thug who shoots to kill (without premeditation, of course) is thrown into the same camp as a truck driver who didn’t take his meds and ran over unfortunate pedestrians.

This case of course occurred in NYC, but NY is a big place, and there’s plenty of people (with epilepsy) who do not live in the city nor do they have access to reliable transit. They are at a great disadvantage for employability if they do not have reliable transportation. Care to subsidize them moreso so everyone can get disability payments with epilepsy?

1) On the failure to take his medication: Well, the issue here is that this individual consciously disregarded medical advice in failing to take his medication–not while hanging out in his house and watching TV–but rather while operating a several thousand ton motor vehicle in a dense urban environment. I think it is fair to assume that he was aware of how his body would physically react when not taking his medication; namely, experiencing a seizure which would render him unable to physically operate a motor vehicle. So, knowing all of this, did he show a depraved indifference to human life? Clearly, the men and women of the jury, after listening to far more information than any of us have been privy to, decided that he had.

2) On the banning of all epileptics from driving: You have conveniently misrepresented and muddied the issue. The driver was not prosecuted for driving a vehicle while being an epileptic. Rather, a central element of the case turned on the issue of an adult’s conscious decision to disregard medical advice by operating a motor vehicle (a several thousand ton truck at that) while not taking his medicine, the results of which could leave the individual incapacitated and clearly unable to retain control of the motor vehicle.

3) Regarding the wide world of murder statutes in other states: That is quite the assertion and I’d be interested to know what research you have to support it. To be honest, I suppose I’m being a bit sarcastic here, because I’m guessing that this is simply an unsupported statement based on your personal opinion. Which of course, is fine, but not necessarily a good way to support a policy position on how a state’s murder statute should be worded. Finally, I’m unclear as to why you continue to associate murder in the second degree, in any of its different statutory forms, with negligence. One is not charged with murder in the second degree in New York State for negligent behavior because negligence is a different mental state than recklessness. If you are maintaining that the driver’s actions were negligent and not reckless and thus he should not have been charged with murder in the second degree, then so be it. And of course, if you were on the jury, you would have been free to judge accordingly.

Poor guy, as if his seizures are not injustice enough, he is being lynched in the name of justice. What a raw deal.
One wonders, what’s “conscious decision, deliberate or negligent” about having seizures, any more than having stroke or heart attack?
How can you prove his seizures are controlled with medication? Who said he can not have “break out”, even when he was taking his medication?
People still have seizures, even when they still keep taking medications.
I presume, the driver is black & the tourists are white,,, what else is new?
Is this what you call,,, “justice for all”? Well, here is a classical example, what you call “justice for all”, is injustice for many.
I hope the Court of Appeals, reverses the conviction, throw the whole case out, free the driver & lock up the prosecutor instead.

Status quoist

There will be a “return to business as usual” because this case was business as usual, with a slight twist. The court/DA found intent to kill based on the motorist taking or in this case, not taking a drug that effected their mental state. This is really just a riff on DUI case law. The big change will be when courts find that speeding and reckless driving demonstrates enough negligence or disregard for humans to start convicting drivers who kill people on sidewalks, in crosswalks etc. This case doesn’t move the law in that direction.

Streetsman

I don’t think it’s insensitive in any way to anyone with any medical condition or disability to say that someone diagnosed with a disorder as potentially debilitating as epilepsy should be prohibited from driving 20-ton garbage trucks, and that, when failure to comply with that requirement by falsifying medical certificates results in the deaths of innocent people, that person should be punished.

You want to be the first one to get on a plane being flown by a narcoleptic and a quadriplegic, be my guest.

Wes states that “this court ruling sets precedent for further rulings,” and Glenn asks “if this was a watershed conviction.” The thing to keep in mind is that this conviction is primarily a product of the jury’s determination. If (heaven forbid) a case with identical facts came up for trial tomorrow, a different jury will be impaneled to decide it and they might decide to convict on a lesser charge, or to acquit entirely. You can personally agree or disagree with the jurors in this particular case, but their decision does not in any way set a precedent for any future court or jury.

The issue for the court in a case like this is: “could a reasonable juror conclude that the defendant, ‘Under circumstances evincing a depraved indifference to human life, . . . recklessly engage[d] in conduct which create[d] a grave risk of death to another person, and thereby cause[d] the death of another person….'” Even if the judge personally believes that there has been no murder, the judge s required to consider objectively the community mores and determine whether under those mores a murder conviction could be reasonable. I think the Judge in this case made the right decision, and that decision does serve as a precedent (though not a binding one) for other judges that future, similar murder 2 cases should sent to the jury.

As far as the DA is concerned, they have tremendous discretion in deciding which cases to prosecute and what charges to bring, but this case should demonstrate to NYC DAs that murder 2 is not a per se unreasonable charge to pursue against a sober driver who kills, depending upon the facts.

Ian Turner

Hi Wes,

The difference between a negligent bicyclist and a negligent motorist is in the risks that each takes; the difference is at least an order of magnitude in size, possibly two orders of magnitude. It’s the difference between throwing knives at someone and throwing spoons. Yeah, it’s possible that you’ll kill with a spoon, but it’s a hell of a lot less likely and therefore does not meet the standard of “depraved”.

As to the idea that epileptics should be allowed to drive because it might be a hardship otherwise: This is insane. Driving is a privilege, not a right, and it should not be extended to those who are likely to do violence in the process. Just as we should not allow alcoholics to drive, so we should not allow untreated epileptics. If that is a burden, then I would encourage epileptics to move to a place where a car is not a necessity of life. That includes all of New York City, by the way.

As for the question of public support, it’s not obvious to me why it should be the public’s responsibility to enable someone to live in a place where they are unable to hold a job, when they could do so just fine elsewhere.

Cheers,

–Ian

Ian Turner

Mr. Epileptic (AKA Gherbe Huwarshek):

It’s possible that race was a factor in the DA’s decision to prosecute this case, but that is a reflection of the sad typical lack of justice elsewhere. This prosecution and conviction was entirely appropriate and just.

wes

“The difference between a negligent bicyclist and a negligent motorist is in the risks that each takes; the difference is at least an order of magnitude in size, possibly two orders of magnitude. It’s the difference between throwing knives at someone and throwing spoons. Yeah, it’s possible that you’ll kill with a spoon, but it’s a hell of a lot less likely and therefore does not meet the standard of “depraved”.”

Running a red light especially in a dense environment is dangerous and is risky and careless no matter what. The law really won’t interpret varying degrees of high recklessness; only juries do.

I understand your point, but it’s still irrelevant analogy because intent was not clearly shown to do harm. Whereas intent to harm is shown by throwing an object whether a spoon, a knife, or a stick of dynamite.

Sure, NY has that crazy law about “recklessness”, but how often is that section of NY’s laws pursued? Probably not too often. It’s best to err on the side of caution, that caution being manslaughter where a homicide occurs but it’s a clear accident.

I find it terrifying that people want prosecutors to have more power in the judicial system! Maybe I read too much news of overzealous make-a-name-get reelected-at-all-cost prosecutors, but a sign of a good prosecutor is one that knows when to not prosecute to the fullest extent. Give prosecutors cruel and unusual punishment and they’d use it – I think that’s telling of many of their mentalities. But sure, let’s not take away from the 95% good prosecutors do in the criminal justice world.

Manslaughter should be the charge, and if he appeals and wins, good for him.

Ian Turner,
Did you say “It’s possible that race was a factor in the DA’s decision to prosecute this case, but that is a reflection of the sad typical lack of justice elsewhere.”
I wonder WHERE that “elsewhere” could be?
You said,”This prosecution and conviction was entirely appropriate and just.”
Do you mean as “appropriate & just” as the English empire massacring the Irish catholics?

FYI: See the story below & tell me if this man made, “deliberate, conscious & negligent decesion” to kill himself, by having seizure in a boat.
Thank you,
Gherbe Huwarshek

Man found dead on lake had seizure.
The man who was found dead in his fishing boat on Oneida Lake last week drowned after suffering an epileptic seizure, state police say.

Ronald Emerling, 64, of Hamburg, a village in Western New York, was found on his boat Sept. 15 with the upper portion of his body submerged in the lake, while the lower portion still was in the boat, police said.

The boat was found near the shore of Lake Shore Road in North Bay on the northern side of the lake.

Life-saving efforts were attempted by the North Bay Fire Department before Emerling was transported to Oneida Healthcare Center and pronounced dead upon arrival.

He stoped taking his meds because they stopped him from getting drunk at the weekends! plus he worked for a company before this one where he also had a fit behind the wheel and got the sack as he lied on his med form. he continued to lie to get another job driving which led him to kill 2 people and hurt someone else. he had no care for anyone just wanted the 60 thousand a year!

Ian Turner

Wes,

Driving heavy machinery in a reckless manner is depraved. Driving a bicycle in a reckless manner is not. If you can’t understand the difference, I’m not sure we have much to discuss.

–Ian

Ian Turner

Gherbe,

I would say that Mr. Emerling took a substantial personal risk in sailing alone, and that the outcome didn’t work out for him, and that that’s a shame. But you can’t call it negligence and you can’t call it depraved because he didn’t put anyone else’s person or property at risk. I believe that people are entitled to take all the risks they please provided they are able to compensate others for the consequences. In the case of Mr. Scarlett, of course, no one is able to return the victims to their loved ones.

The “lack of typical justice elsewhere” that I alluded to is the same as that referenced by the title of this article: Most dangerous drivers, including those who kill, do not receive any judicial attention at all unless they are drunk or high at the time of the accident. Even then, penalties are often minimal. The article itself (did you read it?) references directly five such cases. This is the injustice, that so many other crimes go unpunished.

Mr. Scarlett received the justice he deserved; the only injustice is that he is alone in this.

Best,

–Ian

sparky

Given the facts above this doesn’t sound like that much of a stretch. Defendant apparently lied–repeatedly–about his condition and broke federal regulations, thus engaging in risky behaviour knowingly. In light of his history of seizures, a jury could reasonably conclude that when he concealed his condition and stopped his medication it was a question of when, rather than if, he would have an accident, and that this near-certanty rose to the level of conscious disregard for other humans.
I would not expect this case to have a broad impact, except maybe for epileptics and people with other conditions that might impair their driving ability.

zach

He was charged with murder because of the virtual impossibility of convicting someone of negligent vehicular manslaughter. Am I right here? Haven’t there been many conversations here about this before? Negligent vehicular manslaughter seems exactly what Chau Fu and Stella Maychick committed, and many more.

Does anyone ever get convicted of negligent vehicular manslaughter while sober?

I think the fact that they had to resort to calling it murder to get a conviction shows how wacked the regulations are.

J. Mork

I was on the jury for a (non-vehicular) murder case a few years ago. After all the evidence and arguments had been heard, the judge explained to us (this is from memory, but generally accurate) that we should first consider the charge of murder in the 2nd degree and he explained the law to us regarding that charge. After we had decided that, in this case, murder had not been committed, he explained the law for one type of homicide, and so on, until the jury finally decide that a third, lesser type of homicide (negligent, I believe) was what the law proscribed in that case.

Please enlighten us with your wisedom how this seizure induced accident is different from another seizure induced accident which convicts one driver & frees another driver.

ANOTHER SEIZURE, ANOTHER ACCIDENT, ONE KILLED BUT “the cause of the accident was an epileptic seizure so no charges will be filed”.

Ferry Worker Killed –
9/23/2009
A traffic worker at the Port Aransas ferry was killed after being struck by a car. Police say 32-year old Tommy Lee Rubel Jr. was directing traffic at the Harbor Island Ferry Landing Tuesday evening when he was killed. According to officers 23-year old driver Jeronda Shea Horton was exiting the ferry and had a medical attack causing her too lose control of her car. Police say Horton had an epileptic seizure and struck Rubel. She also hit a light pole, and ran into a wooden fence.

Lt. Darryl Johnson with the Port Aransas Police Department says Horton was taking medication for seizures. He also says a blood sample was taken but alcohol and drugs do not appear to have played a role in the crash.

“It’s still an open case, but it appears the cause of the accident was an epileptic seizure so no charges will be filed,” Johnson said.

Action 10 talked to a spokeswoman with the Texas Department of Transportation which owns and operates the ferrys. She says Rubel was a contract worker for the state so she doesn’t have much information on the accident. However, she says accidents at the Port Aransas ferry are unusual because workers are trained and given safety gear.

“I understand that he had all his equipment on, all the reflective equipment he was supposed to be wearing. I’ve been here 7 years and this is the first one since I’ve been here,” Frances Garza said.

Police are now asking the state if Horton should have been behind the wheel with her medical condition.

Action 10 is told ferry operations are back to normal, but traffic on the Harbor side is down to just one lane.

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